QR&O: Volume I - Chapter 38 Chapter 38: Liability for Public and Non-Public Property

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38.01 - LIABILITY FOR PUBLIC OR NON-PUBLIC PROPERTY

(1) An officer or non-commissioned member is liable to reimburse the Crown for any financial loss that is incurred where the member:

  1. wilfully or negligently makes any improper purchase at public expense;
  2. wilfully or negligently causes, permits or contributes to damage to or the loss, deficiency, theft, destruction, deterioration or improper expenditure of public property or any property under the control of the Minister;
  3. has a deficiency in any personal equipment that is in his care or custody, unless he can show that such deficiency was not caused by his wilfulness or his negligence;
  4. is the occupant of a married quarter in connection with which damage to or loss of public property or any other property under the control of the Minister occurs during his occupancy, other than loss or damage occasioned by reasonable wear and tear, accidental fire, lightning, tempest, acts of God, the Queen's enemies, riots or insurrections; or
  5. is a member of a group occupying or using a cubicle, room, hut, tent or building as single sleeping quarters or dining or recreational accommodation, in which damage occurs or damage to or loss of barrack stores or any similar property under the control of the Minister occurs, unless he can show that such damage or loss was not caused or contributed to by his wilfulness or his negligence.

(2) Every officer or non-commissioned member who wilfully or negligently causes, permits or contributes to damage to or the loss, deficiency, theft, destruction, deterioration or improper expenditure of any non-public property is liable to reimburse the non-public property organization concerned for the financial loss incurred.

(G)

NOTE

The provisions of this chapter are not exhaustive of the circumstances in which deductions may be ordered from pay accounts. Cases not coming within those provisions, such as a deficiency in public funds under the control of a member, may be dealt with under subsection 155(1) of the FinancialAdministration Act, which provides:

"155. (1) Where any person is indebted to

  1. Her Majesty in right of Canada, or
  2. Her Majesty in right of a province on account of taxes payable to any province, and an agreement exists between Canada and the province whereby Canada is authorized to collect the tax on behalf of the province,

the appropriate Minister responsible for the recovery or collection of the amount of the indebtedness may authorize the retention of the amount of the indebtedness by way of deduction from or set-off against any sum of money that may be due or payable by Her Majesty in right of Canada to the person or the estate of that person."

(C)

(38.02: NOT ALLOCATED)

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38.03 - ADMINISTRATIVE DEDUCTIONS

(1) Any circumstances which may give rise to liability of an officer or non-commissioned member to reimburse the Crown or a non-public property organization under article 38.01 (Liability for Public or Non-public Property), shall be investigated (see Chapter 21 - Summary Investigations and Boards of Inquiry). A statement from the member concerned should be obtained if practical.

(2) Subject to the other provisions of this article, where he is of the opinion that liability under article 38.01 exists and that reimbursement is warranted under the circumstances, an administrative deduction from the pay account of the officer or non-commissioned member concerned in an amount sufficient to make reimbursement in full or in part may be ordered by:

  1. a commanding officer, except when
    1. the amount of the proposed deduction exceeds $ 200,
    2. the officer or non-commissioned member concerned objects on the grounds that the proposed deduction is unwarranted or excessive, or
    3. a loss of or deficiency in public funds is involved;
  2. an officer commanding a formation designated by the Chief of the Defence Staff or an officer commanding a command, except when
    1. the officer or non-commissioned member concerned objects to a deduction exceeding $ 50 when proposed by an officer commanding a formation or $ 100 when proposed by an officer commanding a command, on the grounds that the proposed deduction is unwarranted or excessive, or
    2. a loss of or deficiency in public funds is involved; or
  3. the Chief of the Defence Staff, except when the officer or non-commissioned member concerned objects to a proposed deduction exceeding $250 on the grounds that the proposed deduction is unwarranted or excessive.

(3) Except as provided in paragraph (8), before any administrative deduction is ordered under paragraph (2) or increased under paragraph (9), the officer or non-commissioned member concerned shall be given the opportunity to object on the grounds that the proposed deduction is unwarranted or excessive.

(4) Where wilfulness is not involved and liability arises under subparagraph (1)(a) or (b) or paragraph (2) of article 38.01 only by reason of negligence on the part of an officer or non-commissioned member:

  1. no administrative deduction shall be imposed if the negligence is of a minor character, being negligence that does not involve recklessness, undue carelessness or intentional commission of a wrongful act or an intentional omission to perform a legal duty; or
  2. where the negligence is not of a minor character, an administrative deduction ordered under paragraph (2) shall not exceed
    1. where the amount involved is $ 25 or less the full amount,
    2. where the amount involved is more than $ 25 and not more than $ 100, one-half of the amount or $ 25 whichever is the greater,
    3. where the amount involved is more than $ 100 and not more than $ 300, one-third of the amount or $ 50 whichever is the greater,
    4. where the amount involved is more than $ 300 and not more than $ 500, one-quarter of the amount or $ 100 whichever is the greater, or
    5. where the amount involved is more than $ 500, one-fifth of the amount or $ 125 whichever is the greater, subject to the limitation that where liability arises out of his negligence in operating a motor vehicle the deduction shall not exceed $ 250.

(5) Where, in respect of an occurrence described in subparagraph (1)(e) of article 38.01, administrative deductions are to be ordered under paragraph (2), the total amount of such deductions shall not exceed the maximum in the scale set forth in sub-subparagraphs (4)(b)(i) to (v) and each deduction shall be imposed on a per capita basis in respect of every officer or non-commissioned member involved. A subsequent increase, reduction or cancellation of the deduction in respect of any individual, shall not, of itself, affect the deduction ordered against any other individual concerned. Subparagraph (1)(e) of article 38.01 shall not be applied where the liability of an officer or non-commissioned member is established under another subparagraph of paragraph (1) of article 38.01.

(6) Where an authority mentioned in subparagraph (2)(a) or (b) is precluded from ordering an administrative deduction, he shall report the matter to the next higher authority mentioned therein and shall forward with the report:

  1. all available evidence relating to the occurrence, including the proceedings of any board of inquiry or other investigation; and
  2. any statement that the officer or non-commissioned member concerned has made in support of his objection.

(7) Where under subparagraph (2)(c) the Chief of the Defence Staff is precluded from ordering an administrative deduction because of the objection of the officer or non-commissioned member concerned, the matter shall be referred to the Judge Advocate General for advice as to further steps to be taken to recover the Crown's or the non-public property organization's loss. In such cases, the right of the Crown or of the non-public property organization concerned to recover the full amount of the financial loss incurred shall not be prejudiced because a deduction in a lesser amount was proposed under this article.

(8) An authority mentioned in subparagraph (2)(b) or (c) who is of the opinion that liability under article 38.01 exists and that reimbursement is warranted under the circumstances, may:

  1. order an administrative deduction from the pay and allowances of
    1. a member of the Regular Force who has been struck off effective strength as an illegal absentee, or
    2. a member of the Reserve Force who, without authority, remains absent from his unit for a period in excess of three months; or
  2. direct that the pay account of a person who has been released but has not died be debited in an amount sufficient to make reimbursement in whole or in part in respect of the financial loss resulting from an occurrence that took place prior to release;

but only when the amount of the order or direction does not exceed the maximum administrative deduction which could be ordered by the authority over the objection of a member.

(9) Subject to paragraph (4), an administrative deduction ordered under paragraph (2) may be increased, reduced or cancelled by the Chief of the Defence Staff.

(10) The rate of recovery of an administrative deduction shall be determined by the commanding officer (see article 208.41 - Liquidation of Deductions).

(11) Subject to paragraph (9), the recovery of an administrative deduction ordered under this article shall constitute satisfaction of the liability for the financial loss incurred.

(12) This article does not apply in respect of:

  1. the reimbursement of the Crown for moneys paid to a claimant arising out of a claim against the Crown alleged to result from the negligence of an officer or non-commissioned member acting within the scope of his duties or employment; or
  2. damage to a ship as a result of a collision or grounding or to an aircraft as a result of an aircraft accident as defined in article 21.55 (Definition of "Aircraft Accident").

(13) An administrative deduction proposed or ordered under this article does not prejudice disciplinary action against the member concerned.

(G)

(38.04 TO 38.99 INCLUSIVE: NOT ALLOCATED)

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